The U.S. Second Amendment grants citizens the right to possess firearms but limits it under certain circumstances. For instance, possession of a firearm by a felon is unlawful, both under Federal and Texas laws. While Texas restores limited rights to a criminal after the lapse of a specified duration from the date of release, Federal law does not unless one receives a presidential pardon.

Firearm possession is a serious crime that attracts harsh penalties (lengthy imprisonment and hefty fines). According to a past report, 97.6% of felons charged with possessing firearms were sentenced to imprisonment during the year under review. Western District of Texas and Northern District of Texas were among the top five districts in the country leading with possession of firearms by felon cases, with 233 and 209 offenders reported, respectively.

If you’re a felon facing unlawful possession of firearm charges, continue reading for more information on the legal implications, penalties, and potential defenses that your attorney may use to fight the charges as applicable.

Understanding the Law on Unlawful Possession of Firearm by a Felon

The Texas Penal Code outlines the circumstances under which possession of firearms is prohibited. For example, if you have a past felony conviction, it’s unlawful to possess a firearm before your fifth anniversary of the release from confinement or supervision under community supervision, mandatory supervision, or parole. After your fifth anniversary, you regain the right to possess the firearm only on your premises. 

Unlawful possession of firearms also extends to a person with a past assault conviction, punishable as a Class A misdemeanor and involving a family member or household member. Similarly, you’re guilty of the offense if you have a firearm before your fifth anniversary of the date of release from conviction or community supervision. 

As the current law stands, possessing a firearm with a past conviction of family violence/protective order is still illegal. Yet, on February 2, 2023, the Fifth Circuit Court of Appeals ruled that prohibiting a person from possessing a firearm after a conviction of family violence and/or a protective order is unconstitutional – but the law has not changed here in the State of Texas. The Texas Legislature may revisit this matter based on the decision of the Federal court in the case styled: United States of America v. Zackey Rahimi.

Texas vs. Federal Law

Under federal law, possession of a firearm by a felon remains unlawful indefinitely. That means if you’re found with the firearm on your premises even past five years after your release, you may be prosecuted under federal law. However, in such a situation, the federal policy may defer to state law, in which case you would not be convicted. 

The only federal exemption is if your conviction has been expunged or your civil rights have been restored. But again, this exemption may be limited depending on the law of the state where the proceedings were held.

What is Considered a Firearm?

The law is specific in its definition of a firearm. According to the Texas Penal Code, black powder guns or muzzleloaders do not qualify as firearms. Exemptions include:

• An antique/curio firearm (with a matchlock, percussion cap, flintlock, etc.) manufactured before 1899, and
• A replica of an antique/curio firearm manufactured before 1899 and which does not use centerfire or rimfire ammunition

What Constitutes Possession?

The law defines possession as custody, care, control, and management of a firearm. To be convicted for the offense, the prosecution must prove beyond reasonable doubt that you voluntarily possessed the gun. 

Penalties for Unlawful Possession of a Firearm by a Felon

If you were caught possessing a firearm and you have been previously convicted of an Assault Family Violence (as the current law stands – remember, the Federal Court just ruled that this provision was unconstitutional), you’re guilty of a Class A misdemeanor, punishable as follows: 

• Imprisonment – 1-year maximum 
• Fine – Up to $4,000.00 
• Both fine and jail 

If you were caught possessing a firearm and you are a convicted felon, you’re guilty of a Felon in Possession of a Firearm, punishable as 

• Imprisonment – 2 to 10-year maximum 
• Fine – Up to $10,000.00 
• Both fine and jail

Texas law generally prohibits people from possessing firearms while subject to domestic violence-related protective orders issued in Texas or another jurisdiction once they have received notice of the order. These firearm-prohibiting protective orders include final and temporary ex parte orders issued to protect family and household members, dating partners, and victims of stalking, trafficking, and sexual assault, among others.

Possible Defenses in Unlawful Possession of Firearms

As reports indicate, most felony offenders charged with possessing a firearm end up being sentenced to imprisonment. However, no matter the high stakes involved, there’s always a chance of acquittal where strong evidence exists. 

While hiring an attorney does not guarantee an acquittal, it grants you the privilege of experienced representation. Their knowledge of the relevant laws and intricacies of similar cases gives you an advantage over not having a personal attorney. 

Some of the possible defenses your attorney may employ to secure a more favorable judgment include the following;

• Justifiable possession defense – Under this defense, you admit that you had possession of the firearm but for justifiable reasons. For instance, if someone was committing a crime and you took the gun from them. But for the validity of this defense, you must prove that you held the firearm momentarily and were in the process of surrendering it to law enforcers.
• Illegal search defense – If the law enforcers confiscated the firearm during an illegal search, your attorney could use the illegal search defense to suppress the evidence. Law enforcers must have a search warrant before searching your property. Your attorney could request the court to dismiss the case if the search was unlawful.  
• Momentary possession defense – If you had the firearm momentarily intending to get rid of it, your attorney could use this as a defense. Such a scenario may arise if, for instance, you find a gun abandoned in your residence and law enforcement officers seize it before you surrender it. However, the attorney must prove that you held the gun momentarily and were within a reasonable time of disposing of it.
• Insufficient evidence – The prosecution must prove that the firearm was in your possession beyond a reasonable doubt. If there’s no evidence to support the claim, such as video surveillance or eyewitnesses, and the gun is not listed in your name, you can argue for case dismissal on the grounds of insufficient evidence.

Get Aggressive Legal Representation to Fight Your Unlawful Possession of a Firearm Charges

If you’re a felon and have been charged with unlawful possession of a firearm, your likelihood of going to prison is relatively high based on past court decisions. Hiring an experienced criminal defense attorney is vital to present the best possible defense and fight the charges. Contact us at Starr Law, P.C., today, and tell us more about your case, then, we will advise on the best way forward.